Freedom of Religion
Early Issues: Religion in America
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Religion motivated most Western
Europeans to come here.
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Colonists had bitter memories of established
religions and persecution –
Anglicans/Puritans.
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The Constitution mentions religion only
once – Article VI: No religious tests
required as a qualification.
Religion in America: The Founding
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As a key to the Bill of Rights promised to
states, religious freedom was included.
“Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof.”
These clauses were meant to stop
persecution that had arisen during the early
years of the country.
This was an experiment because no other
nation had total religious freedom.
Defining Religion: The Nineteenth
Century
• Reynolds v. U.S. (1879): Polygamy was not
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supported at the nation’s birth and therefore may be
outlawed.
More generally: Religions not supported by the
framers may be regulated.
BELIEF/ACTION Dichotomy.
Davis v. Beason (1890): Reinforces Reynolds.
Ties religion to belief in God.
Permits regulation of religious practices that are
considered immoral.
Defining Religion: The Twentieth
Century
• U.S. v. Ballard (1944): Sincerity of beliefs, rather
than the truth, is the proper standard for defining
religion.
• U.S. v. Seeger (1965): Beliefs only need to be
parallel to a belief in God (any supreme being).
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Welsh v. U.S. (1970): Morality and ethics are the
key.
Free Exercise of Religion
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Literal Interpretation: You can do
ANYTHING you want to do.
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History does not bear out this
interpretation (Jefferson)!
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The Court’s actions do not support this
interpretation.
Free Exercise of Religion
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First real debate was whether actions can be
regulated.
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Remember Reynolds: Congress can NEVER
regulate opinions or thoughts, but CAN regulate
actions that violate the social order.
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Upheld religious action in Pierce v. Society of
Sisters (1925).
Cantwell v. Connecticut (1940)
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Question: Does requiring a person to obtain
a certificate in order to solicit support for
their religious views violate the free
exercise clause?
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Yes. Unanimously.
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Neutral laws are fine, but in this case the
law did not meet this standard.
Valid Secular Policy Test
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Minersville School District v. Gobitis
(1940): The state had a legitimate secular
reason for flag salutes.
West Virginia State Board v. Barnette
(1943): Overruled Gobitis. WHY?
• Huge criticism of Gobitis in legal community.
• State courts ignored Gobitis on a regular basis.
• It was a reaction to fascism (1940 to 1943).
• The mass persecution of Jehovah’s Witnesses.
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NOTE: The Court did not get rid of the
valid secular policy test.
Valid Secular Policy Test
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Prince v. Massachusetts (1940): States may
regulate religious practices that may be
harmful to kids.
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Labor laws are a valid secular policy.
Downfall of Valid Secular Policy Test
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1.
Braunfeld v. Brown (1961): Laws that
burden religion must meet two criteria:
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They must have an important, neutral, secular
end.
They must use the least restrictive means.
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Potter Stewart: This is a “cruel choice.”
Sherbert v. Verner (1963)
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Question: May a state deny unemployment
benefits to persons whose religious beliefs
preclude them from working in Saturdays?
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No. 7-2 vote.
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States must have a compelling interest to
regulate on this subject. There is no
compelling reason for this regulation.
New Test: Balancing (in theory)
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Must have a COMPELLING STATE
INTEREST to regulate religious actions.
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Must use LEAST RESTRICTIVE MEANS.
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Neutral laws may be struck down too!
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Q: Will this always favor the individual?
Wisconsin v. Yoder (1971)
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Question: Do compulsory education laws
that force the Amish to send their children
to school violate the free speech clause
through the Fourteenth Amendment?
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Yes. 6-1 vote.
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The state here would gravely endanger, if
not destroy, Yoder’s religious beliefs.
The Compelling Interest Standard
• Thomas v. Review Board of Indiana Employment
Security Division (1981): Similar choice as in
Sherbert, and the Court ruled in the same way.
• Bob Jones University v. U.S. (1983): Government
interest in combating racism. And the policy does
not stop BJU from practicing its religion.
• Bob Jones suggests the Sherbert standard may be
in jeopardy.
Downfall of the Compelling Interest
Standard
• U.S. v. Lee (1982): Government has a compelling
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interest in collecting Social Security taxes.
Q: Why is this different from Yoder?
• Goldman v. Weinberger (1986): The military has a
special interest in subordinating individual interests
for discipline.
Q: Is this a break in precedent or a special case?
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Point: Congress passed a law allowing “neutral
and conservative” clothing.
Rehnquist Court and the Sherbert
Test
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Hobbie v. Unemployment Appeals Commission of
Florida (1987): Compelling interest test applied as
it was in Sherbert. Brennan uses the term STRICT
SCRUTINY!
• After Hobbie the Rehnquist Court began to chip
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away at the compelling interest test and allow more
government intervention:
Shabazz
Lyng
Hernandez
Swaggart
Employment Division of Oregon v.
Smith (1990)
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Question: May a state deny unemployment
benefits to those who lost their jobs because
they violated a general law, even when the
action taken was based on religious
convictions?
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Yes. 6-3 vote.
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While a nondiscriminatory religious
practice exemption is permitted, it is not
constitutionally required.
The Aftermath of Smith
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Court has come full circle back to Reynolds.
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Incidental Impact Test – the government may
regulate actions!
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Church of the Lukumi Babalu v. City of Hialeah
(1993): Court could not agree on the standard to
use, but agreed the city violated the church’s free
exercise.
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Why was Lukumi Babalu unanimous and Smith so
divided?
The Aftermath of Smith
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Congress passes RFRA.
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Codified the compelling interest test from
Sherbert.
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Challenged in City of Boerne.
City of Boerne v. Flores (1997)
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Does the RFRA impermissibly interfere
with local governmental power to decide
how to balance individual rights and
governmental authority?
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Yes. 6-3 vote.
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The power to interpret the Constitution lies
with the judiciary. The RFRA tries to
control our cases and controversies, which
is beyond congressional power.
Final Overview of Religious Freedom
Doctrine
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Reynolds/Davis (New or unconventional
religions not protected)
Cantwell (Belief/Action Dichotomy)
Sherbert (Compelling Interest/Strict
Scrutiny)
Smith/City of Boerne (Incidental
Impact)